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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Turnbull v. North British Railway Co. [1903] ScotLR 40_699 (12 June 1903) URL: http://www.bailii.org/scot/cases/ScotCS/1903/40SLR0699.html Cite as: [1903] ScotLR 40_699, [1903] SLR 40_699 |
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Page: 699↓
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An action of damages for personal injuries was settled during the trial after certain evidence had been led by the pursuer but before any of the medical witnesses had been examined. In terms of the settlement the pursuer was found entitled to expenses, and the account thereof was remitted to the Auditor to tax and report.
On a consideration of objections to the Auditor's report, in respect that, of the sums charged for four medical witnesses, he had disallowed in toto the sums charged as fees for two medical witnesses, and also the sums charged for drawing precognitions of two medical witnesses, and had reduced the sums charged as fees for two medical witnesses to £4, 4s. each, held that the Auditor in his report had correctly followed the rule in Watson v. The Caledonian Railway Company, June 22, 1901, 3 F. 999, 38 S.L.R. 717, as to the fees to be allowed to medical witnesses, and note of objections refused.
James Turnbull, sometime warehouseman, 60 West End Park Street, Glasgow, raised an action against the North British Railway Company to recover £5000 damages for personal injuries sustained by him in an accident on the defenders' railway on August 30th 1902.
An issue was adjusted, and the case went to trial before a jury on March 26th 1903.
At the trial certain evidence was led for the pursuer, but before any of the medical witnesses had been examined the action was settled on condition of the defenders paying £1150 and expenses, and the jury of consent returned a verdict in favour of the pursuer for £1150.
On May 19th 1903 the Court applied the verdict, and found the pursuer entitled to expenses, and remitted the account thereof to the Auditor to tax and to report.
After the accident the pursuer had been attended in the hospital throughout his illness by Dr Knox and Dr Boyd, who were both in attendance as witnesses at the trial. He had also been examined and reported upon by Dr Beaton. Some time before the trial the pursuer had been examined by Professor Annandale and Dr Murray, who were also in attendance at the trial to give evidence for the pursuer.
The Auditor having made his report on the pursuer's account of expenses, the pursuer objected thereto in so far as the Auditor had disallowed partially or in whole the following items in the pursuer's account of expenses:—
“1903
Jan. 27. Framing following precognitions—Taxed off.
Dr Boyd
£1
4
0
£1
4
0
Dr Knox
2
16
0
2
16
0
Making three copies of precognitions—
1
16
0
1
16
0
March 26. Paid witnesses per Schedule—
Dr Knox, Prof. of Surgery, Glasgow, 1 day
10
17
6
10
17
6
Dr Boyd, Glasgow, 1 day——
7
14
6
7
14
6
Dr Murray, Surgeon, Alexandra Hospital, Glasgow——
10
17
6
6
6
0
Professor Annandale, Edinburgh, 1 day
15
15
0
11
11
0
£51
0
6
£42
5
0”
The Auditor allowed fees to Dr Knox and Dr Beaton for reports of examination of pursuer prior to the raising of the action, and the agent's charge relating thereto, and also a fee to Dr Boyd for attending an examination of the pursuer along with the defenders' doctors, and the agent's charges relating thereto, as well as the agent's charges in connection with the examination of the pursuer and the reports thereon by Dr Murray and Professor Annandale.
Argued for the pursuer and objector—The medical fees charged were in the circumstances fair and reasonable and should be allowed. The Auditor had allowed only fees to two medical men, viz., four guineas each, and had disallowed in toto the fees to the other medical men who were properly in attendance as witnesses at the trial. This allowance was entirely inadequate, having
Page: 700↓
regard to the serious nature of the pursuer's injuries, the medical questions arising in relation thereto, and the necessity in the interest of the pursuer to bring forward medical evidence to balance the weighty medical evidence which in the knowledge of the pursuer it was in contemplation to lead on behalf of the defenders. The case was distinguishable from Watson v. Caledonian Railway Company, June 22, 1901, 3 F. 999, 38 S.L.R. 717. In regard to the two fees of four guineas allowed by the Auditor for the other medical witnesses, it was not a matter of concern to the pursuer whether these fees should be allowed, as had been done by the Auditor to Dr Murray and Professor Annandale, who had been called in to report, or to Dr Boyd and Dr Knox, who had attended the pursuer during his illness. Counsel for the defenders were not called on.
We had occasion in the case of Watson v. The Caledonian Railway Company ( 3 F. 999) to consider carefully the question of the fees which should be allowed to medical men in accident cases, as the number and the amount of such fees had been growing in a manner it was impossible to approve of.
It was our intention in that case to place a reasonable limit to the amount which a litigant could be called on to pay for medical men, either as witnesses for his opponent or for services rendered by them prior to the trial.
In the present case it appears to me that the fees allowed are quite adequate, and that to allow more would be inconsistent with the decision in the case of Watson, which we intended should form the rule of practice.
With regard to the objections to the charge for the precognitions of Dr Boyd and Dr Knox, I think the Auditor has followed accurately the decision in the case of Watson ( 3 F. 999).
With regard to the charges which the Auditor has allowed for the attendance at the trial of the medical witnesses a little explanation is necessary.
The Auditor has disallowed in toto the charge of £10, 10s. for Dr Knox and £7, 7s. for Dr Boyd. Now, these were the two doctors who attended the pursuer after the accident, and they were proper witnesses of fact in the case, and in ordinary circumstances the pursuer would be entitled to charge a fee for their attendance at the trial. But in this case a fee is allowed for the attendance of two other surgeons, viz., Professor Annandale and Dr Murray, at the trial, and these fees are allowed in place of those asked for Drs Knox and Boyd, as I understand by the desire of the pursuer.
But I agree with Lord Adam in his view that the fees for attendance at the trial to the other two doctors who treated the pursuer in the hospital, and who were therefore witnesses to facts, are proper charges in this case, and no doubt the Auditor's reason for disallowing them was that he thought the pursuer would prefer that the fees should be allowed to his expert witnesses. Although, as I have said, these fees would more properly have been allowed to the two medical witnesses who attended the pursuer at the hospital, I see no reason to interfere with the Auditor's taxation, as in a re-audit the pecuniary result would be the same.
When a case is compromised before the trial is concluded the parties will no doubt take into consideration in determining the amount of the compromise that certain charges incurred in preparation for the trial cannot be recovered from the other party, and there is therefore no hardship in applying the strict rule of taxation.
The Court refused the note of objections, with £2, 2s. of expenses to the defenders.
Page: 701↓
Counsel for the Pursuer— Salvesen, K.C.—Munro. Agents— St Clair Swanson & Manson, W.S.
Counsel for the Defenders— Ure, K.C.— Grierson. Agent— James Watson, S.S.C.